In 1866, Congress formed the Joint Committee on Reconstruction to investigate conditions in the South. 140-173, at 152.

Had it overruled the New York law, perhaps it would have been more of a concern to people. Please also recall what Jefferson said about interpretation: “On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” [7]. He sued the city for his loss in value under the takings clause of the 5th Amendment.

The issue thus raised was one of the most important ever presented to the Supreme Court.

The reaction of these men, as well as the failure of counsel in the earlier cases even to raise the question, affords ample proof that if the Amendment was designed to incorporate the Bill of Rights, this was not generally known to its contemporaries.”, “…the [incorporation] theory can be regarded as nothing more than a bald attempt to amend the Constitution by judicial fiat.”, “The prospect of such an extensive revision of state practice would have caused major controversy at the very least; quite probably it would have prevented ratification of the Amendment. The argument ran that all rights which a citizen had before the Fourteenth Amendment were privileges or immunities which he now held as a citizen of the United States, regardless of whether the right in question existed or was given under state law or federal law, or existed against the state or Federal Government. On July 9, 1868, the last of the 28 states needed to approve the Fourteenth Amendment acted, and Secretary of State William Henry Seward formally announced the ratification on July 28.

This may all be a reflection of what Hamilton said in the first paragraph of Federalist #27 where he set forth as a general rule that people’s “confidence in and obedience to a government will commonly be proportional to the goodness or badness of its administration.”. The Court asserted…that the taking of property of the railroad without making just compensation would violate the Fourteenth Amendment….The principle asserted would have been obvious if the Fourteenth Amendment incorporated the Bill of Rights, because the Fifth Amendment says that private property shall not be taken for public use without just compensation…. To depart from this fundamental is…’to frustrate the great design of a written Constitution. The words, ‘No State shall pass any bill of attainder, ex post facto law,’ etc., were wise and proper restrictions in the Constitution. In Gitlow v. New York, [10] a communist party official was convicted by a New York court of violating the state’s criminal anarchy statue. After all, other parts of the Constitution specifically restricted state action (e.g. It is a basic idea that we can better understand the meaning of the Constitution by looking at the context of its adoption and the abuses it aimed to eliminate.

[1] . The judge-made doctrine of qualified immunity makes suing the police for damages incredibly difficult. Over time, this third change has proved particularly important for our system. 181, p.135.

Anyway, this is a very interesting bit of Constitutional history that has long since been forgotten, if ever even noticed at all, by most people.
And as the body of case precedent grew with each new inroad, future ones became easier and easier to accomplish. Barron v. Baltimore: The Bill Of Rights Only Served as Handcuffs Against Federal Government Action. Origins: Current Events in Historical Perspective gratefully acknowledges the generous support of the Stanton Foundation. Remember from Primer #1 how George Washington recognized the need for trade-offs regarding liberties and other worthy societal goals and objectives? The fourth section forbade payment of any of the debts Confederates had incurred during the insurrection.

By the late twentieth century Americans accorded the courts, and especially the United States Supreme Court, a special, primary role in the protection of civil rights and equality before the law. It did not delegate power to counteract private denial of rights. Spies v. Illinois, 123 U.S. 131 (1887). Obviously, no such handcuffs on state governments made it into the final version of the first ten Amendments forming the Bill of Rights.
Another illustration can be found in the Commerce Clause interpretation which will be discussed in the next article. The Court asserted…that the taking of property of the railroad without making just compensation would violate the Fourteenth Amendment….The principle asserted would have been obvious if the Fourteenth Amendment incorporated the Bill of Rights, because the Fifth Amendment says that private property shall not be taken for public use without just compensation….

The assertion of this doctrine, incidentally, gave to the Fourteenth Amendment an importance vastly greater than it was supposed to have in 1868 [when it was adopted. Jefferson predicted the usurpation of power from the states would take place gradually and noiselessly and ultimately culminate in quite a shocking cumulative result.

fly into an uproar over these changes? What’s So Great About a Written Constitution? Let’s look a little more closely for a moment at the overall issue of “selective incorporation.”  By its piecemeal interpretation of the 14, The problem surrounds the issue of determining what those rights really are, interpreting what they actually mean, and limiting the extent of their application. Can’t reasonable minds differ on such things? Even though the adopters of the Fourteenth Amendment did not intend to overturn, a communist party official was convicted by a, court of violating the state’s criminal anarchy statue. Hence, the ACLU happily prances around the country forcing local communities to remove monuments to the ten commandments, religious Christmas decorations, the singing of Christmas songs, prayers from public meetings, etc., and the courts make the local communities pay the ACLU attorneys fees in the process. Furthermore, these were rights of individuals to due process and minority groups to equal protection that the courts had never shown much interest in safeguarding. The historian Leon Litwack has observed that “how many black men and women were beaten, flogged, mutilated, or murdered in the first years of emancipation will never be known.” Still, the report made clear that the goal of protecting Black bodies from police abuse of power was fundamental to the Fourteenth Amendment.


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